DOJ and House lawyers will not represent Rep. Mo Brooks in a Capitol riot lawsuit filed by Rep. Eric Swalwell

• Rep. Eric Swalwell is suing Rep. Mo Brooks, accusing him of helping incite the Capitol riot.
• On Tuesday the House's general counsel said it wouldn't be appropriate to represent Brooks.
• The DOJ said Brooks wasn't acting in the scope of his employment with comments he made January 6.

The House of Representatives' Office of General Counsel said in a filing Tuesday that it would not represent Rep. Mo Brooks in a lawsuit filed by Rep. Eric Swalwell.

Swalwell alleged in his original complaint that Brooks helped "incite the violence at the Capitol" when he told Capitol protesters to "start taking down names and kicking ass."

Brooks said in a filing that when he gave his speech on January 6 he was acting within the scope of his employment, something that would grant him a form of legal immunity via the Westfall Act.

General Counsel Douglas N. Letter wrote on Tuesday, however, that it would not be appropriate to represent Brooks in this lawsuit as the case did not challenge an "institutional action of the House or any of its component entities."

The Department of Justice also denied Brooks' claim Tuesday that he was acting within the scope of his employment and requested that he not be granted immunity. The DOJ and the House counsel's filings are not binding, and a judge could still say Brooks was acting in the scope of his employment and receive immunity.

It took Swalwell several months to serve the original complaint against Brooks because Swalwell's team could not locate the representative, though Brooks denied hiding from Swalwell.

Swalwell ultimately hired a private investigator to locate Brooks. The complaint was ultimately served to his wife at their home.

"Well, Swalwell FINALLY did his job, served complaint (on my WIFE). HORRIBLE Swalwell's team committed a CRIME by unlawfully sneaking INTO MY HOUSE & accosting my wife!" Brooks said in a tweet.

There are precedents to this decision

The House counsel pointed to a legal spat more than a decade ago between House Minority Leader John Boehner and Rep. Jim McDermott in which both parties used private attorneys.

McDermott obtained and leaked an illegal recording of a call between Boehner and former House Speaker Newt Gingrich to the press, leading to a lawsuit from Boehner. An appeals court ultimately awarded Boehner over $1 million in damages and said McDermott "unlawfully" obtained the recording in violation of his official duties.

Additionally, according to Ryan Goodman, the former special counsel to the general counsel of the Department of Defense, the DOJ filing also suggests that former President Donald Trump may also not be granted immunity via the Westfall Act.

-Ryan Goodman (@rgoodlaw) July 28, 2021

The DOJ is defending Trump in a lawsuit from the writer E. Jean Carroll, who alleges the former president raped her.

The general counsel's full filing is below: